Politically charged European Court of Justice rules for continued ban on snus

The European Court of Justice on 22 November decided against overturning the European Union-wide ban on the smokeless tobacco snus. The ruling displays a political public health motivation, writes Bill Wirtz, policy analyst for the Consumer Choice Centre, for EU Reporter.

In January last year, the New Nicotine Alliance (NNA) appealed against the 1992 EU-ban on the smokeless tobacco snus. Snus is powdered tobacco, often sold in pre-packed bags the size of an index finger, which the users place on the upper lip.

It is sometimes confused with snuffed tobacco, which is legal. Snus does have associated health risks, and can also lead to nicotine addiction, yet it reduces the risk of pulmonary diseases. The product is particularly popular in Scandinavian countries.

According to Eurostat figures, smoking rates in Sweden – which negotiated an opt-out of the snus ban when it joined the EU in 1995 – are the lowest in the whole of Europe. In fact, they are half those of most European countries, and are three times lower than in Bulgaria, Greece, Hungary or Turkey. It’s hard to imagine that snus doesn’t play a role in this – because it doesn’t qualify as smoking. Similarly, statistics in Norway reveal that 2017 marked the first year in which 16- to 74-year-olds consumed more snus than cigarettes.

The ban was defended by counsels for the European Commission, the European Council, the European Parliament, Norway and the UK.

Among the arguments presented were that tobacco consumption of all kinds needs to be reduced, and that snus could be regarded as a gateway to conventional cigarettes. Not only is there no scientific evidence for the ‘gateway drug’ claim — it is also bizarre that EU outlaws the gateway, while allowing the sale of cigarettes, a drug it considers more dangerous.

Snus advocates suffered a major blow when Danish Advocate-General Henrik Saugmandsgaard Øe concluded that snus remains a health hazard, which legitimizes the ban.

Pro-snus advocates have two reasons to argue for a lifting of the ban: on one hand there’s the economic incentive of the company’s that make snus, which would not be denied by the companies. After all, producing companies have an obvious business incentive. But more importantly, there’s an aspect of harm-reduction that is important: cigarette smokers can quit smoking through snus. Yes, snus is not a harmless product in itself, but it is a better alternative than cigarettes. Shouldn’t the goal of public health be to encourage this process of reducing risks?

The ruling of the European Court of Justice displays a deep bias against the principle of harm-reduction. The court casts out the experience of Norway and Sweden, and says that that snus as a tobacco cessation method is “uncertain”. It also cleverly manages to avoid asserting that there is a gateway effect, by stating that there is a “risk of a gateway effect”. Calling it a mere gateway risk exempts the judges from proving the gateway relationship, which is not proven.

However, two paragraphs in the ruling stand out:

“Tobacco products for oral use remain harmful to health, are addictive and are attractive to young people. Further, as stated in paragraph 26 of the present judgment, such products would, if placed on the market, represent novel products for consumers. In that context, it remains likely that member states may be led to adopt various laws, regulations and administrative provisions designed to bring to an end the expansion in the consumption of tobacco products for oral use.”

Most interestingly, nothing in this paragraph (58) is untrue. Snus is harmful to health, it can be addictive and it is attractive to young people (as observed in Scandinavian countries). It is also correct that the product would be novel, and that certain member states would feel inclined to regulate on the national level. However, nothing therefore contradicts the claims of harm-reduction.

“Moreover, as regards more particularly the claim by Swedish Match [Swedish company that produces snus] that the permission given to the marketing of other tobacco and related products demonstrates that the prohibition on the placing on the market of tobacco products for oral use is disproportionate, it must be recalled that an EU measure is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner […].”

This paragraph 59 of the ruling is the most telling about the political motivations of the court. Swedish Match made an argument over the proportionality of the ban vis-à-vis other legal products. In essence: why is snus illegal, while other products which are more harmful, such as cigarettes, are legal?

The paragraph contains a lot of legalese, but it refers in its arguments to a ruling of July last year, in which it stated that it considers the overall objective of a law in its judgement regard proportionality. In essence, the ECJ says that EU rules against tobacco are made in an effort to protect public health, which means that any change on the market that could, in any way possible, make a product more interesting to consumers, contradicts the objective of the law. In fact, the court doesn’t deny that a ban on snus is disproportional in itself, but that given the context of the objectives of public health policy, a ban is proportionate. Nothing could indicate more clearly that the court only confirms the policies of the European Union.

Snus is one of the viable harm-reducing products, which can actually give tobacco users a viable alternative for smoking cigarettes. Yes, consumers do not always choose the healthiest option for themselves, but if presented with choices offered on the market, they might actually reduce the health hazards posed to their bodies.

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